Morin v. H. W. Maxim Co.

• Decision Date: 19 July 1951
• Parties: MORIN v. H. W. MAXIM CO., Inc. et al.
• Court: Maine Supreme Court

Page 789

82 A.2d 789

146 Me. 421

MORIN v. H. W. MAXIM CO., Inc. et al.

Supreme Judicial Court of Maine.

July 19, 1951.

Clifford & Clifford, Lewiston, for plaintiff.

W. A. Trafton, Jr., Auburn, for defendants.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

MURCHIE, Chief Justice.

Decision on this bill in equity, dated July 7, 1950, brought by the complainant, pursuant to the provisions of R.S.1944, Chap. 164, Sec. 38, to preserve and enforce a lien for labor and materials used in the repair of a building owned by one of four named defendants, must be controlled by determination whether the certificate required to be filed by R.S. 1944, Chap. 164, Sec. 36, as identified in the process, was seasonably filed. Neither the filing of a lien certificate, after the expiration of sixty days from the time the last materials or labor were furnished or performed, nor the commencement of process after the expiration of ninety days from that date, is seasonable. Baker v. Fessenden, 71 Me. 292; Cole v. Clark, 85 Me. 336, 27 A. 186, 21 L.R.A. 714; Darrington v. Moore, 88 Me. 569, 34 A. 419; Woodruff v. Hovey, 91 Me. 116, 39 A. 469; Hartley v. Richardson, 91 Me. 424, 40 A. 336; Marshall v. Mathieu, 143 Me. 167, 57 A.2d 400.

In this case two lien certificates were filed, one on April 3, 1950, stating that the last labor and materials were furnished on February 3, 1950. No process was instituted to preserve and enforce it. A second one was filed on June 22, 1950 (dated June 19, 1950), stating that the last of said materials and labor were furnished and performed on June 14, 1950. This is the one the present process was brought to enforce. It is not denied that the complainant did some work on the premises on May 8, 9 and 10, and possibly on May 12, which was incidental to the work completed on or before February 3, or that he painted some sash, storm sash and screens on June 8, 9, 12, 13 and 14. The time for commencing any kind of process to enforce the lien filed on February 3 aforesaid had expired before the first of these dates. The Justice who heard the case below found that the painting of the sash, storm sash and screens, in June, was a part of the work the complainant had contracted to do. This covered, among other things, the painting of 'sashes, doors, trim, storm sash and screens', with an express recital that 'New screens and storm sash (were) to have two coats.' The Justice must have found as a fact that June 14 was the date on which the last labor and/or materials were furnished. A decree was entered adjudging complainant to be entitled to the lien claimed and an appeal was duly taken.

The named defendants, in addition to the owner of the premises, are a general contractor who undertook to make extensive repairs thereto, and who employed the complainant to do the particular work to which the lien relates, and two mortgagees, with whose knowledge and consent the repairs were undertaken. Stipulations entered in the case render it unnecessary to consider the propriety of the prices charged for labor and materials or whether the work done was performed on, and became part of, the building sought to be reached by the lien. The sole issue is the date on which, under all the circumstances of the case, the complainant must be held to have ceased 'to labor or furnish materials', to use the controlling statutory words.

The cause was consolidated in the Trial Court with several other processes involving lien claims upon the premises involved. That consolidation is meaningless to the issue, but is noted because the Justice below recorded in his findings that the 'defendant, Cook, mortgagee, is the only defendant contesting the validity of the lien', and that he 'has instituted foreclosure proceedings.' He recorded, also, that the 'practical effect' of a successful contest on the part of the appellant would be to give him the benefit of $5,743.80 of labor and materials, (the figure named being that of the lien awarded) 'which were actually put into the building.' In this connection we note that while this Court has recognized heretofore that the lien law should be construed favorably to those entitled to its protection, Shaw v. Young, 87 Me. 271, 32 A. 897, Hartley v. Richardson, supra, Andrew v. Bishop, 132 Me. 447, 172 A. 752, 100 A.L.R. 121, it has also recognized, in Cole v. Clark, supra, that labor performed cannot be considered as labor entitling one to the benefit of the lien law: 'simply because it would * * * remedy * * * unfortunate neglect to comply with the statute'. [85 Me. 336, 27 A. 188.]

It was said expressly in Shaw v. Young, supra, and affirmed in Andrew v. Bishop, supra, in asserting the rule of liberal construction, that the tests were whether the lien had been 'honestly earned' and whether the lien claimant was 'within the statute.' The issue in this case involves the latter question only.

The evidence taken out before a Special Master in Chancery (which is the only evidence heard in the cause) discloses that the complainant, on August 26, 1949, wrote the general contractor, offering, at a fixed price, to do all the painting and decorating in connection with the alterations contemplated on the property in question. The offer was accepted September 6, 1949. Work had already commenced under it at that time, and continued through February 3, 1950. On April 3, 1950, as heretofore noted, a lien certificate was filed pursuant to R.S. 1944, Chap. 164, Sec. 36, asserting a claim for the full contract price for 'labor done and materials furnished * * * between second day of September, 1949, and February 3rd, 1950', and declaring that the last items thereof were furnished and performed on the latter date. The work done on May 8, 9 and 10 was nothing more than 'touch-up work', and has no bearing on the issue, although it is apparent that it was done after the lapse of more than ninety days from the completion of the contract work, according to the lien certificate then on file.

The record is entirely silent concerning what happened between April 3, 1950, when the first lien certificate was filed, and June 2, 1950, when the complainant wrote the general contractor a letter, the substance of which will be stated hereafter. It conclusively appears, however, that at some time during the interval, which must have been after the lapse of ninety days from February 3, 1950, the complainant learned in some manner that the lien thus recorded was no longer available for enforcement.

On June 2, 1950, the complainant wrote the general contractor a letter, recalling the contract, wherein, as he stated, he had agreed 'among other things' to put two coats of paint 'on the new screens and storm sash', and declaring that he had been 'waiting' to finish his work under the 'written contract', and that the general contractor had been 'slow in furnishing' the screens. The letter referred to the fact that the general contractor was 'apparantly in financial difficulty' and requested the contractor to furnish 'all new storm windows and the new screens so that I may complete my job and file my lien.'

The testimony given by the complainant, before the Special Master in Chancery, and the exhibits presented in connection therewith, present an absolute contradiction of the statement that complainant was 'waiting to finish up' his work, if that statement was read, as it would be normally, as declaring that his 'waiting' dated back to February 3, 1950. He stated under oath, more than once, that when he filed the lien certificate on that date, he thought his work under his contract was completed, or finished. The certificate was prepared and filed for him by an attorney. He went to another after the time had expired for preserving and enforcing his lien under it, pursuant to R.S. 1944, Chap. 164, Sec. 38, or R.S. 1944, Chap. 164, Sec. 45, and, perhaps, after he had solicited the opportunity to paint new...